Good's Estate

Opinion by

Mb. Justice Mitchell,

The fund, the interest of which was paid to the widow of testator, was a debt of the executor and trustee to the estate, yet its existence in that form did not necessarily, or in fact as the auditor found, involve any breach of duty. It was not a debt in the ordinary general sense, but unpaid purchase money for the mill property, the equitable title to which was in the executor and trustee under articles of purchase from the testator, the legal title however remaining in the latter up to the time of his death, partly at least, as would appear, from an inability to make a clear title during the continuance of an outstanding dower. While therefore the executor’s allowing this debt to stand, and treating it as the security for the interest to be paid to the widow during her life, was not an investment of the fund such as the will directed, yet it served the purpose safely, was practically agreed to by the acquiescence of the heirs, and was in effect sanctioned by the orphans’ court in its order of April 22,1881, requiring the insurance of this property “ as additional security for the moneys in his hands.”

This estate was considerable in amount but apparently very little of it was in cash or other form available for immediate distribution. The executor who also acted as trustee administered it for a period of fourteen or fifteen years, during the life of the widow, so far as appears, safely and prudently. He accepted the responsibility of advancing money to save a home for one of the heirs, Mrs. Ault, who is now here as an appellant.

These facts are all that are necessary to show that the general rules as to the charge of interest upon debts of the executor to the estate, down to the time of actual payment, and as to the allowance of commissions under such circumstances, as established in the cases cited by the appellants, do not necessarily apply. For the discussion of the particular items we are content to rest the case on the report of the learned auditor, and the opinion of the court. *

Appeals dismissed at the costs of the appellants respectively.

[See, also, the next case.]